Lakshmi Ammal and Others vs Subbaraj and Others

V. Ramaswami, J.—This second appeal filed by the defendants in O. S. No. 4 of 1963, arises out of the final decree proceedings. The suit

was filed by the plaintiff-respondents herein for partition and separate possession of their 23/48th share in the plaint A schedule properties. That

suit was decreed on 31-7-1964. Neither the plaintiffs have prayed for past or future mesne profits in the plaint nor the preliminary decree directed

an enquiry into the mesne profits under Order 20, Rule 12, Civil P. C. The plaintiffs filed IA. 124 of 1966 for partition of the immovable properties

and separate possession as directed in the preliminary decree. They also filed TA 205 of 1966 for determination of mesne profits for the suit items

from fasli 1372 onwards and to incorporate the same in the final decree. The dispute in these proceedings related to the jurisdiction of the Court to

go into the question of mesne profits in the absence of a prayer in the suit either for past or future mesne profits and in the absence of even a

direction by the Court in the preliminary decree to enquire into the mesne profits under Order 20, Rule 12, Civil P. C. The defendants also

questioned the quantum of mesne profits determined by the Commissioner in the final decree proceedings.

It is the contention of Sri N. Velu-swami, the learned counsel for the appellant, that in the absence of a specific prayer in the plaint for past

mesne profits or for future mesne profits, the Court had no jurisdiction even to provide for determination of the mesne profits subsequent to the suit

hi the preliminary decree, much less to direct the determination in the absence of a direction in the preliminary decree itself. In support of this

contention the learned counsel relied on two decisions of the Supreme Court reported in Mohd. Amin and Others Vs. Vakil Ahmed and Others,

corresponding to D.S. Seshadri Vs. Jayalakshmi, , and Gopalakrishna Pillai and Others Vs. Meenakshi Ayal and Others, . In the first of these

cases the plaintiff claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either

past or future mesne profits or rent. But the preliminary decree directed an enquiry to be made under Order 20, Rule 12, Civil Procedure Code. In

considering whether this direction was correct or not, the Supreme Court made the following observations:

It was however pointed out by Sri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no

demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits

as such but urged that the claim for mesne profits would be included within the expression ''awarding possession and occupation of the property

aforesaid together with all the rights appertaining thereto''. We are afraid that the claim for mesne profits cannot be included within this expression

and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been clamed in the plaint. The provision in regard to

the mesne profits will therefore have to be deleted from the decree.

In the latter case the suit was for the recovery of possession of Immovable property and for past mesne profits. There was no specific, prayer for

future mesne profits. But the preliminary decree directed an enquiry into the future mesne profits as well, though there was no specific prayer for

the same in the plaint. It was contended relying on the above observations that the court had no jurisdiction to pass a decree for future mesne

profits in the absence of a specific prayer for the same. The Supreme Court held that though the plaintiff must plead in order to enable him to get a

decree for past mesne profits, with regard to future mesne profits, since the plaintiff would have no cause of action on the date of the institution of

the suit it was not necessary for him to plead in the plaint and in all cases where there is a prayer for past mesne profits, the court had ample

jurisdiction to direct an enquiry to be made into future mesne profits in the preliminary decree. The Supreme Court distinguished its earlier

judgment in Md. Amin v. Vakil Ahmed (Supra) on the ground that in that case there was no demand or claim for either past or future mesne profits

in the plaint and it is only in those circumstances the court held that the preliminary decree could not direct an enquiry into the future mesne profits.

It is true in this case there was no claim for either past or future mesne profits in the plaint itself and not even the preliminary decree directed an

enquiry into the mesne profits. Therefore, prima facie it appears that these two decisions of the Supreme Court would seem to conclude that no

enquiry could be conducted under Order 20, Rule 12, Civil P. C. in the instant case. But the learned counsel for the respondents relied on

Babburu Basavayya and Others Vs. Babburu Guravayya and Another, which is a decision of a Full Bench of this court and also the decision of the

Supreme Court in R.S. Madanappa and Others Vs. Chandramma and Another, . In Babburu Basavayya and Others Vs. Babburu Guravayya and

Another, the question for consideration was where the plaint did not pray either for past or future mesne profits and the preliminary decree also did

not provide for an enquiry into the mesne profits under Order 20, Rule 12, Civil P. C., an enquiry into the profits of the properties realised by the

defendants subsequent to the institution of the suit could be held and the plaintiffs awarded mesne profits. The Full Bench of this court held that the

preliminary decree determines only the shares of respective parties and matters like the realisation of common outstandings, the discharge of

common liabilities, distribution of profits of the properties realised pending the suit etc., would have to be considered and decided before an

equitable final partition could be effected. Therefore, even after the passing of the preliminary decree it is open to the court to give appropriate

directions regarding all or any of the matters suo motu or on the application of the parties. The claim in such cases for the plaintiff''s share of profits

accruing from the lands pending suit is not properly speaking a claim for mesne profits and neither Order 20, Rule 18, Civil P. C. prohibits the

Court from issuing directions re-garding an enquiry into the mesne profits after the stage of preliminary decree.

In R.S. Madanappa and Others Vs. Chandramma and Another, , the preliminary decree provided for determination and payment of future mesne

profits from the date of the suit. Though in paragraph 2 of the judgment it was stated that the suit was for partition and separate possession of the

plaintiff''s half share and for mesne profits, it is seen from the arguments set out in paragraph 5 the mesne profits claimed were past mesne profits

only and there was no prayer for claiming future mesne profits. It was argued before the Supreme Court relying on the decision in Mohd. Amin and

Others Vs. Vakil Ahmed and Others, , that the direction in the preliminary decree relating to future mesne profits was without jurisdiction. The

Supreme Court after noticing the decision of the Full Bench of this Court in Babburu Basavayya and Others Vs. Babburu Guravayya and Another,

and the catena of cases which followed the judgment observed--

We feel that when a suitable occasion arises it may become necessary to reconsider the decision of this court as to future mesne profits.

But on the facts of that case itself and after pointing out that the suit was for partition of the plaintiff''s half share and for past mesne profits, held that

the direction in the decree for mesne profits was not beyond the jurisdiction of the court. The decision of this court in Babburu Basavayya and

Others Vs. Babburu Guravayya and Another, was also cited in the decision in Gopalakrishna Pillai and Others Vs. Meenakshi Ayal and Others, .

While relying on the judgment for holding that a plaint need pray only for past mesne profits but need not pray specifically for future mesne profits

in order to enable the court to award future mesne profits, the Supreme Court did not go further and state that the decision of this court in so far as

it stated that in cases where there was no prayer for past mesne profits the court had no jurisdiction to grant a decree for future mesne profits is not

correct. The decision in R.S. Madanappa and Others Vs. Chandramma and Another, & in Gopalakrishna Pillai and Others Vs. Meenakshi Ayal

and Others, of course related to cases where there was a prayer for past mesne profits, though the plaint did not specifically pray for future mesne

profits and that they are not direct authorities for holding that even without a prayer for future mesne profits, the decree could provide for future

mesne profits.

But the ratio of these judgments, in my opinion, is that it is not the fact, that past mesne profits are claimed in the suit, that enables the court to

award future mesne profits. But it is the legal position that with regard to future mesne profits the plaintiff has no cause of action on the date of the

institution of the suit and that it was not possible for him to plead the cause of action or to value it or to pay court-fee thereon at the time of the

institution of the suit that relieves the plaintiff of the necessity of claiming specifically future mesne profits in the suit itself. This was the view of the

Full Bench of this court in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, also. The Full Bench specifically considered this

question with reference to a case where there was no claim for past mesne profits and held that the court can decree future mesne profits to the

plaintiff even in such a case. I am, therefore, of opinion that the courts below had the jurisdiction to enquire into it and award the mesne profits

from the date of the suit.

The next point that arises for consideration in this appeal is on the merits in respect of two items The appellants herein claimed that the mense

profits awarded by the courts below in respect of items 2 and 16 are unsustainable. Item 2 of A Schedule to the plaint is a house property. One

Ayyakk-ammal the sister of Ramaswami, the first plaintiff''s father, was in occupation of the downstairs portion and the upstairs portion was rented

out to five persons each paying Rs. 5. The courts below directed that the first defendant has to account for the rental collections from the tenants

on the ground that he had allowed Ayyakkammal to receive the rent collusively and that the rent received by Ayyakkamal shall be deemed to have

been received by the defendants. In this case on the legal position the courts below have rightly held that the plaintiff''s liability is only to account for

such of those profits which he had received after making all just adjustments in favour of expenses in realising Ihe same. But, having rightly posed

the legal position, the courts below erred in holding that the amount received by Ayyakkammal shall be deemed to have been received by the

defendants. In the absence of any specific finding that the defendants had received the rents and profits in respect of this item either through

Ayyakkammal or by themselves, they could not be made liable to account for the same. If Ayyakkammal had received the rents without she being

entitled to the same, she might be held to have received on behalf of the plaintiffs and the defendants as well and it could not be stated that the

defendants alone shall be deemed to have received it. Nothing prevented the plaintiffs from claiming the amount from Ayyakkammal Therefore, the

direction of the courts below in respect of item 2 is liable to be set aside and it is accordingly set aside. The appellants are not liable to pay mesne

profits in respect of item 2.

Item 16 is an extent of 4-36 acres of punja lands. This property was gifted under Ex. B.28 by Ramaswami, the father of the first plaintiff in

favour of his two minor daughters through his second wife, defendants 3 and 5 in the suit. The plaintiffs claimed one third share in respect of these

properties also. Defendants 1, 2 and 4 claimed that the property was managed by one Kon-dama Naicker as guardian of minor defendants 3 and

5 and that they were not liable to pay mesne profits in respect of the same. The courts below now held that the first defendant was in possession

and management of this item and, therefore he is liable to account for mesne profits. In the suit it was found that though the gift by Ramaswami in

favour of his daughters related to the entirety in respect of the share of the plaintiffs, it was not binding on them and that, therefore, they are also

entitled to a share in those properties. The parties proceeded on the footing that minor defendants 3 and 5 were in possession of the entire

properties through their guardian. But the courts below held that the first defendant was in possession of the properties as the guardian of the

minors on the sole ground that in the plaint the plaintiffs showed the first defendant as the guardian of the minors in the cause title and sued the

minors with the first defendant as the guardian. But this was not objected to by the first defendant and in fact the first defendant filed a written

statement as the guardian. The suit related to number of items. In all the items minor defendants 3 and 5 also claimed a share. Therefore, when the

first defendant did not demur his being described as the guardian of the minors, it could not be stated that with reference to the specific property

covered by the gift deed. Ex. B.28, he accepted his position as the guardian or that he was in possession of that property. His specific case was

that in respect of that item Kondama Naicker was in possession on behalf of the minors, and, therefore, he was not liable to account for the profits

received from the same. The learned counsel for the appellants is well founded in this contention. In the absence of any other positive evidence to

show that the first defendant was in possession and management of this 4-36 acres on behalf of the minors, no decree for profits arising out of the

same could be made against the first defendant. But that will not disentitle the plaintiffs to claim their share of the profits from those properties from

minor defendants 3 and 5, because admittedly either Kondama Naicker as guardian or any body else as guardian, defendants 3 and 5 had been in

possession and enjoyment of the properties. The application filed by the plaintiffs did not specifically ask that the first defendant alone is liable to

account for the profits arising from these lands. They asked for a decree generally against all the defendants. In these circumstances, defendants 3

and 5 alone are liable to account for profits arising from item No. 16. There is no dispute as to the quantum of profits determined by the courts

below. Therefore, the final decree will have to be modified to the effect that in so far as the profits arising from item No. 16 is concerned, it is

defendants 3 and 5 that would be liable to pay the plaintiffs'' share of the profits.

The learned counsel for the appellants then pointed out that while providing the marriage expenses for daughters the trial court made the

following observations in paragraph 28 of its order in I. A. 205 of 1966-- ""As she has got 1/6th share, I direct her to raise money out of 1/6th

share for the jewels."" This had not been incorporated in the decree, and quite rightly. The liability to provide for the marriage expenses as per

clauses 4 and 5 is on the plaintiffs and the first defendant. This observation is, therefore, not correct and it is accordingly directed to be deleted.

But the final decree is correctly drafted and that does not require any alteration. Accordingly, the second appeal is allowed in part in respect of

item 2 and to the extent mentioned in respect of item 16. The final decree will be modified accordingly. There will be no order as to costs in this

second appeal. No leave.